Теоретичні підходи до розуміння правової природи субсидіарної відповідальності

English

theoretical approaches to understanding the legal nature of vicarious liability

Abstract. Introduction. Studying the history of vicarious liability, it should be noted that it is impossible to determine the date of origin of this concept, since it is impossible to say exactly when the concept of liability as such emerged. However, most scholars believe that the concept of liability for certain activities or omissions is closely related to the emergence and development of society and the relations between its members. Purpose. The purpose of the study is to provide a comparative analysis of scientific approaches of foreign and Ukrainian scholars to understanding the legal nature of vicarious liability. Materials and methods. The research materials are: 1) legal and regulatory framework for the regulation of vicarious liability; 2) scientific works of domestic and foreign scholars who study the legal nature of vicarious liability In the course of the study, the following scientific methods were used: theoretical generalisation (to analyse the essence of the concept of vicarious liability); analysis and synthesis (to compare scientific approaches of different authors to the legal nature of vicarious liability); logical generalisation of the results (formulation of conclusions). Results. The article analyses the scientific approaches of foreign and Ukrainian scholars to understanding the legal nature of vicarious liability. The author identifies the main arguments in favour of classifying a subsidiary obligation as an obligation with a plurality of persons: the presence of several subjects of obligation (two debtors participate in a subsidiary obligation: The main and subsidiary (additional) debtors; this creates a plurality of persons in the obligation on the part of the debtors); connection with the interests of the creditor (the creditor has the right to apply to the subsidiary debtor only if the main debtor has not fulfilled its obligations; thus, the obligations between the debtors are distributed depending on the order of performance); additional protection for the creditor (a subsidiary debtor acts as an additional guarantee of fulfilment of the obligation, which is a form of securing the creditor's rights in obligations with multiple parties. Also, based on the views of foreign and domestic scholars on the legal nature of subsidiary liability and the provisions of the Civil Code of Ukraine, the author summarises the main arguments against classifying a subsidiary obligation as a multiple-party obligation. They are based on the peculiarities of the nature of such obligations and their legal structure. The author determines that subsidiary liability does not fit into the classical concept of obligations with a plurality of persons due to the specific dependence of the subsidiary debtor's obligations on the failure of the principal debtor to fulfil its obligations, and also due to its vicarious nature. The author establishes that subsidiary liability is considered to be a specific type of civil liability which has its own peculiarities. Discussion. In further research, it is proposed to focus on an in-depth analysis of the foreign regulatory framework for determining the legal nature of vicarious liability. This will allow for a deeper comparative analysis of Ukrainian and foreign experience in understanding the concept of vicarious liability as such.

Keywords: vicarious liability; civil liability; obligations; subsidiary debtor; plurality of persons; creditor